January312012

“

TL;DR: Important dates for ACTA in the European Parliament:
- 29 February/1 March: Discussion in international trade committee,
- April or May: Vote in international trade committee,
- 12, 13 or 14 June: Final vote in plenary (most important vote).
(Please note, all dates may be changed)

On its website, the EU Commission pretends that ACTA “is not SOPA”. This is correct. In some important ways, ACTA is worse than SOPA. ACTA is the global blueprint for repressive laws such as SOPA:

ACTA is the inspiration for SOPA/PIPA in the US. While SOPA may have been put aside for a moment, ACTA is a global agreement negotiated outside of democratic arenas and meant to be imposed globally. Moreover, if SOPA were to be adopted, the US Congress could amend or abrogate it. ACTA will prevent the EU and its Member States as well as other signatories to change their copyright and patent laws, and to fix their broken and brutal enforcement policies to adapt to the new economy of sharing.

If ACTA is adopted, it will be possible for the entertainment industry to exert pressure on every Internet actor under threat of criminal sanctions (art.23). Intermediaries will thus be forced to deploy (art.27) automated blocking, filtering of communications and deletion of content online. Such measures will inevitably restrict users' freedoms online.

ACTA's call for “cooperation” between rights-holders and Internet service providers is also advocated by the European Commission as “extra-judicial measures” and “alternative to courts”. This means that police (surveillance and collection of evidence) and justice missions (penalties) could be handed out to private actors, bypassing judicial authority and the right to a fair trial. By defending this SOPA-style policy in ACTA, the Commission is paving the way for the copyright industries' enforcement agenda, preventing any true debate on alternative to repression. This fits with the announced revision of the IPRED and eCommerce directives.

See also La Quadrature's analysis of the final text of ACTA's digital chapter.

1. “ACTA is important for the EU's external competitiveness, growth and jobs as well as to the safety of citizens”

ACTA is a direct by-product of the lobbying offensive launched in 2004 by the International Chamber of Commerce, presided by the then CEO of Vivendi-Universal Jean-René Fourtou, whose wife acted as EU Parliament rapporteur for the IPR Enforcement Directive (IPRED) adopted the same year. It is one of the worst examples of private interests taking over policy-making.

ACTA may have been negotiated like other trade agreements, but it is not just a trade agreement on tariffs. Instead, ACTA generalizes extreme civil sanctions and broadens the scope of criminal sanctions.

Binding the EU to such outdated models, and deploying schemes that can be used as anti-competitve weapons will only hamper innovation, competition and growth. Not only in the digital economy, but in many fields which rely on the free sharing of knowledge, from agriculture to healthcare.

There was never any impact assessment on the need for such an plurilateral agreement. The Commission never proved that tougher enforcement standards worldwide would actually benefit the EU's public interest, much less the rest of the world's.

Instead of imposing ACTA to developing countries, the EU should urgently look at the broader consequences of its current policies (EUCD, IPRED) on innovation, access to culture and fundamental rights, and reform these policies to lay the foundation of a true knowledge-based economy.

Contrary to the Commission's claims, transparency on ACTA was only made possible after negotiation documents were leaked by insiders worried of ACTA's consequences. These leaks forced the negotiators to release negotiation texts in the Spring of 2010, more than 3 years after the beginning of the negotiations.

The negotiation and implementation of ACTA bypasses legitimate international organizations (WTO, WIPO) where copyright, patent and trademarks policy are discussed. This is all the more unacceptable considering that a growing number of countries understand the importance of reforming these policies by breaking away from blind repression.

2. “ACTA is a balanced agreement, providing adequate protection to sectors in need, while safeguarding the rights of citizens and consumers”

Safeguards in the text are purely generic and declarative, mostly in the general parts of the agreement, where enforcement provisions, generally vaguely worded, are binding to signatories. For instance, a study by legal professors Kroff and Brown stresses that ACTA “overall significantly strengthens enforcement measures (especially criminal law ones), without any of the safeguards and exceptions needed to ensure a balance of interests between right holders and parties”.

The Commission says ACTA does not go further than the EU acquis, but leading EU legal scholars have made clear that on important points it does: in particular on criminal measures, for which there is no EU acquis, and on border measures and damages.

The letter of ACTA may not be contrary to the eCommerce directive, EUCD or IPRED, but strengthens them and prevents EU lawmakers from amending them on crucial points.

The overall logic of ACTA's digital chapter paves the way for extra-judicial measures, similar to those of SOPA and PIPA, whereby rights holders and ISPs or financial service providers would “cooperate” to take “measures” against alleged infringements that could only amount to censorship mechanisms, bypassing due process and the right to a fair trial.

This reading is comforted by the criminal sanctions provided for “aiding and abetting” infringements (art. 23.4). Such concerns are also accentuated by the EU Commission's IPR strategy and the current overhaul of the IPRED and eCommerce directive.

3. “ACTA is about adequately enforcing existing intellectual property rights, but does not create new rights”

ACTA modifies the scope of criminal sanctions in EU Member States, ensuring they will be applied for cases of infringement on a “commercial scale”, defined as “direct or indirect economic or commercial advantage” (art. 23.1). This term is vague, open to interpretation, and just plainly wrong when it comes to determining the scope of proportionate enforcement, as it does not make any distinction between commercial and non-profit infringement. Widespread social practices, like not-for-profit file-sharing between individuals, as well as editing a successful information website or distributing innovative technological tools, could be interpreted as “commercial scale”.

By extending the scope of criminal sanctions for “aiding and abetting” to such “infringement on a commercial scale”, ACTA will create legal tools threatening any actor of the Internet. Access, service or hosting providers will therefore suffer from massive legal uncertainty, making them vulnerable to litigation by the entertainment industries.

The Presidency of the Council of the EU (representing the 27 Member States governments) had to negotiate ACTA in conjunction with the Commission. The Presidency negotiated the “criminal sanction” chapter of ACTA, which could not be negotiated by the Commission as criminal law is part of Member States' competencies. This illustrates that there is no EU acquis on criminal sanctions and proves that ACTA does change EU law.

Beyond broadening the scope of copyright, patent and trademarks enforcement, ACTA establishes new procedural rules favouring the entertainment industries. These procedures will have a dramatic chilling effect on potential innovators and creators, especially considering ACTA's insane damage provisions (during a trial, right holders will be able to submit their preferred form of damage computation, see art. 9.1).

In the future, ACTA's scope could also be easily expanded through the “ACTA committee”. The latter will have authority to interpret and modify the agreement after it has been ratified, and propose amendments. Such a parallel legislative process, which amounts to signing a blank check to the ACTA negotiators, would create a precedent to durably bypassing parliaments in crucial policy-making, and is unacceptable in a democracy. This alone should justify that ACTA be rejected.

4. “ACTA has a broad coverage, so as to protect all European creators and innovators, through a broad range of means”

China, Russia, India and Brazil, countries where most of counterfeiting is produced, are not part of ACTA, and have stated publicly that they will never be. Considering the widespread opposition to ACTA, the agreement has lost any legitimacy on the international stage.

Again, the Commission has not even proved the need for new enforcement measures nor that existing TRIPS measures are not enough.

The Commission keeps stepping up repression, when in many instances counterfeiting is at its core a market failure due to the inadequacy of IPR holders' business models and contracts. At the same time, no EU Commission initiative exists to take a positive approach on discussing new financing models for the culture economy fit for the digital environment.

Geographical indications – a key point for Europe's small businesses and cultural heritage – are mostly excluded from ACTA. The few references to geographical indications in ACTA will have no or very little effect on third countries' national law.

Get in touch with Members of the EU parliament and make sure they know what ACTA is really about. Visit our our dedicated campaign page.

FFII has also drafted a detailed response to another EU Commission document on ACTA called “10 myths about ACTA”.

January292012

... and the Organization for Economic Cooperation and Development. Leaked cables published by WikiLeaks in 2009 exposed early drafts of ACTA, resulting in a firestorm of controversy. Those cables, coupled with later releases, showed that ACTA negotiations began in 2006 and were controversial even to participating states. An historical
summary of the treaty’s progress through December can be found here. ...

As Wayne Rash wrote earlier this week, "ACTA is, in effect, a treaty, negotiated in secret by the U.S. Trade Representative, Ron Kirk... Until recently, the actual text of ACTA was so secret that only a few lawyers outside of the White House and the USTR offices had actually seen it. And those people were required to sign non-disclosure agreements."

What ACTA Is

The goal of ACTA, says the Electronic Frontier Foundation (EFF) is "to create a new standard of intellectual property enforcement above the current internationally-agreed standards in the TRIPs Agreement and increased international cooperation including sharing of information between signatory countries' law enforcement agencies."

The EFF backgrounder also provides some insight to ACTA. While President Obama is carrying the torch for ACTA right now, the treaty goes back to October 2007 (or farther) when the U.S., Japan, Switzerland and the European Community said they'd be working on a new intellectual property enforcement treaty.

ACTA isn't the only area where (as the EFF puts it) "copyright industry rightsholder groups have sought stronger powers to enforce their intellectual property rights... to preserve their business models." But it is getting closer to reality.

The word is that ACTA probably doesn't change U.S. law. Probably? Nobody's entirely sure. But as Techdirt calls out "it certainly does function to lock in US law, in a rapidly changing area of law, where specifics are far from settled." It also, of course, serves to dictate compliance in other countries.

Why ACTA Is Unacceptable

ACTA was negotiated in secret – For me, this is reason enough to oppose any legislation or regulation. I don't care if it's the "Hugs for Puppies and Kittens Act," if people aren't given an opportunity to engage with their lawmakers about a law, it shouldn't be enacted.

Ridiculous damages – ACTA specifies "presumptions for determining damages" that basically assume that all of the infringed goods had sold. To put it another way, ACTA takes the position that if a user uploads a song to a file-sharing network, damages should be calculated as if the recipients would have paid for the work in question. This is ridiculous, as has been explained any number of places. Many people who download illicit copies would simply never have purchased the work in question had it not been available for free.

It may be unconstitutional – The Obama administration is claiming that ACTA not a treaty, but an "executive agreement" and thus not subject to legislative approval. As Rash notes in his eWeek piece, Congress does not agree.

It's over-broad – It's worth noting that not all of ACTA is necessarily bad. Some of the agreement is targeted at countering counterfeit goods that may be actively harmful, like counterfeit prescription drugs. But ACTA goes well beyond single areas of intellectual property and essentially tries to bear-hug everything IP-related. Not good.

The ACTA committee is not accountable – ACTA creates a body outside of national and even international bodies, called the "ACTA Committee." (At least the name is honest.) The committee would not be accountable to the people governed by the agreement. Folks in the United States can vote out Lamar Smith and others who endorsed SOPA/PIPA, but we would have no real influence on the ACTA Committee.

No fair use provisions – As this opinion on ACTA by Eddan Katz and Gwen Hinze notes, ACTA would "export one half of the complex U.S. legal regime" but "without accompanying exceptions and limitations." In short, ACTA would not include fair use provisions and such that we expect in the U.S.

Criminalizes what used to be a civil offense – An opinion prepared by Douwe Korff and Ian Brown notes, "ordinary companies and individuals could be criminalised for innocent activities or trivial breaches of copyright, or for technical breaches that serve a wider, overriding public interest (as in whistleblowing), without an appropriate defence." The EFF says "If the real intent behind introducing expanded criminal sanctions is to address infringement on the Internet, this provision is not likely to do so, but is likely to cause significant collateral harm to consumers."

Locks In DMCA-Like Provisions – As the EFF notes (PDF) in its submission to the USTR, ACTA would "lock in" some of the controversial aspects of the DMCA that require legal enforcement against circumventing copy protection, etc. In other words, don't get too set on the idea of jailbreaking that iPhone.

ACTA could be used against legitimate medications – As I noted earlier, looking to crack down on counterfeit drugs is good. Going after legitimate "grey market" drugs, that's another story. Yet as Techdirt notes "there are very reasonable concerns that ACTA will be used to crack down, not on actual counterfeit medicines, but on "grey market" drugs – generic, but legal, copies of medicines. Some European nations, for example, already have a history of seizing shipments of perfectly legal generic drugs in passage to somewhere else."

That's 10, but I'm sure there are more. As I wrote on January 18th, sending SOPA/PIPA to the legislative trashbin for the year is great, but not enough. SOPA/PIPA are not the only laws that threaten the free and open Internet. There's plenty of bad policy to go around at the state, national and international levels. One round of annoyed phone calls to Congress is not going to do the trick. Even if it's too late to stop ACTA, there's even worse coming.

This post was originally published on the Electronic Frontier Foundation's Deeplinks blog.

Yesterday, Twitter announced in a blog post that it was launching a system that would allow the company to take down content on a country-by-country basis, as opposed to taking it down across the Twitter system. The Internet immediately exploded with allegations of censorship, conspiracy theories about Twitter’s Saudi investors and automated content filtering, and calls for a January 28 protest. One thing is clear: there is widespread confusion over Twitter's new policy and what its implications are for freedom of expression all over the world.

Let’s get one thing out of the way: Twitter already takes down some tweets and has done so for years. All of the other commercial platforms that we're aware of remove content, at a minimum, in response to valid court orders. Twitter removes some tweets because they are deemed to be abuse or spam, while others are removed in compliance with court orders or DMCA notifications. Until now, when Twitter has taken down content, it has had to do so globally. So for example, if Twitter had received a court order to take down a tweet that is defamatory to Ataturk–which is illegal under Turkish law–the only way it could comply would be to take it down for everybody. Now Twitter has the capability to take down the tweet for people with IP addresses that indicate that they are in Turkey and leave it up everywhere else. Right now, we can expect Twitter to comply with court orders from countries where they have offices and employees, a list that includes the United Kingdom, Ireland, Japan, and soon Germany.

Twitter's increasing need to remove content comes as a byproduct of its growth into new countries, with different laws that they must follow or risk that their local employees will be arrested or held in contempt, or similar sanctions. By opening offices and moving employees into other countries, Twitter increases the risks to its commitment to freedom of expression. Like all companies (and all people) Twitter is bound by the laws of the countries in which it operates, which results both in more laws to comply with and also laws that inevitably contradict one another. Twitter could have reduced its need to be the instrument of government censorship by keeping its assets and personnel within the borders of the United States, where legal protections exist like CDA 230 and the DMCA safe harbors (which do require takedowns but also give a path, albeit a lousy one, for republication).

Twitter is trying to mitigate these problems by only taking down access to content for people coming from IP addresses the country seeking to censor that content. That's good. For now, the overall effect is less censorship rather than more censorship, since they used to take things down for all users. But people have voiced concerns that “if you build it, they will come,”–if you build a tool for state-by-state censorship, states will start to use it. We should remain vigilant against this outcome.

In the meantime, Twitter is taking two additional steps to ensure that users know that the censorship has happened. First, they are giving users notice when they seek that content. Second, they are sending the notices they receive to the Chilling Effects Project, which publishes the orders, creating an archive. Note: EFF is one of the partners in the Chilling Effects project. So far, of very big websites only Google and Wikipedia are this transparent about what they take down or block and why. When Facebook takes down a post, there is no public accountability at all. Through Chilling Effects, users can track exactly what kinds of content Twitter is being asked to censor or take down and how that happened.

So what should Twitter users do? Keep Twitter honest. First, pay attention to the notices that Twitter sends and to the archive being created on Chilling Effects. If Twitter starts honoring court orders from India to take down tweets that are offensive to the Hindu gods, or tweets that criticize the king in Thailand, we want to know immediately. Furthermore, transparency projects such as Chilling Effects allow activists to track censorship all over the world, which is the first step to putting pressure on countries to stand up for freedom of expression and put a stop to government censorship.

What else? Circumvent censorship. Twitter has not yet blocked a tweet using this new system, but when it does, that tweet will not simply disappear—there will be a message informing you that content has been blocked due to your geographical location. Fortunately, your geographical location is easy to change on the Internet. You can use a proxy or a Tor exit node located in another country. Read Write Web also suggests that you can circumvent per-country censorship by simply changing the country listed in your profile.

Post SOPA might be slightly wishful thinking, because the industries that paid for the bill are not going to back down any time soon. Perhaps they’ve realised they’re at least going to need to be slightly more subtle about wanting control of the internet. (Although as long as Chris Dodd is speaking for the MPAA, subtlety doesn’t look like it’s going to be an option.) They will be back. But there are others about, trying similar. So what’s there to worry about?

Dondequiera says of the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA): “Mark my word, this issue is not dead. More like the living dead, a zombie issue, if you like. Many companies…believe that the only way to kill the intellectual property rights legislation is to out innovate Hollywood and deliver solutions that make their demands obsolete. I wish them the best of luck.”

January212012

The IBM Powers of Ten video is a classic: as the stolid narrator ticks off powers of ten, the camera pulls back or zooms in and a new layer of complexity is revealed. We need a Powers of Ten video for SOPA.

At the initial scale, Hollywood lobbyists convinced Congress to push a bill through that would give Hollywood a measure of control over Internet sites by facilitating DNS takedowns, placing liability on site operators, and generally placing restrictions on Internet businesses designed to benefit existing content distributors. The depressingly smooth passage of the bill meant serious measures were called for: the blackout day. On that day, tens of millions of people became alerted to the consequences of SOPA and wrote to their representatives. SOPA has stalled, possibly died. And there was rejoicing.

Step back further and you see that Internet companies have set themselves up as new distribution channels while the old distribution companies were napping. Amazon can take an author's book and put it in consumers hands without ever involving a publisher, and Apple are following suit. Amazon, Apple, and Google all distribute movies. The legacy distribution companies are owned by the content production companies, and their "save our business" message muddles whether it's content production or legacy distribution that's threatened by these new Internet companies. Congress put their legislative thumb on the scales in a business dispute: old money vs new money, incumbent rent extractor vs upstart.

Step back further and you see that Congress thumbs the scales all the time. Between the money that can be earned from corporations and unions as a lobbyist after leaving Congress, and the money needed to run a campaign to be elected in the first place, there are a lot of reasons for Congressional representatives to be receptive to advances from monied interests. This means their legislative attention is not on the good of society or even the majority, but for the good of those willing to spend money to buy it. This is the big picture view, the root of the problem.

Congress is a flea pit. We can crack the fleas one at a time as they bite us, or we can clean house. I see widespread jubilation on the success of the SOPA skirmish, but only oneor two people thinking and talking about how we win the war. We win when we end this stream of Internet-breaking bills, and that will only happen when Congressional election campaigns are no longer paid for by monied interests. An independent Congress will still listen to business and unions, it just won't have to roll over and beg when money whistles.

This is, obviously, a bigger problem to solve. Lessig has called it a "generational" problem: pernicious money will take 30 years to eradicate, so we may end up cleaning up the country for our children. The size of the change doesn't make it impossible. It's a strategy problem, like every other: spend time and money at every power of ten, more where it's urgent and important, investing in R&D where a way forward isn't immediately obvious.

What does it mean to attack it at every power of ten? Simply:

Fight SOPA when it's urgent. Well done, immediate crisis is over!

Prepare to fight SOPA 2.0 and TPP and ACTA 2.0 and .... Until we fix Congress, there'll be more attempts to provide welfare for legacy distributors. Blackouts won't work. Get the holdouts (Facebook, Amazon, Twitter, etc.) to join in a sustainable coalition to oppose future fuckery. Obama's election was made possible by incredible tools for mobilizing voters; we need similarly evolved tools. Invest a little now so we don't have a cold start when the next bad bill comes along.

Buy online. Be the change you want to see: use your wallet to feed the companies you want to succeed, don't spend with the ones who want to break your Internet. Low-priority but ongoing.

Buy and read Lessig's new book Republic, Lost. He was ahead of the curve when he alerted us to problems with copyright law, and he's been ahead of the curve in his identification of corruption as an issue. This is research.

Join rootstrikers or any other group working to eliminate the root cause of Internet-breaking legislation: corruption. At election time, give them money instead of making campaign donations.

Invent the next thing we can all do which will bring us closer to change.

You'll notice I don't have "get Internet giants to lobby Congress" on my list. I'm sure they'll do that already, but I don't believe you can fight this fire with fire. They may need to lobby tactically, but strategically you fight fire by taking away its fuel or oxygen and that means taking obligation-creating campaign donations away from Congress.

If we don't do this, we'll keep scratching and crushing the fleas one at a time until we're miserable from all the bites. We need to zoom out a few powers of ten and clean house to solve the underlying problem.

January202012

This morning, Sen. Harry Reid (D-NV), the Senate Majority Leader, said in a statement that he would postpone next week's vote on the PROTECT IP Act (PIPA). Rep. Lamar Smith (R-TX) followed with a statement that he would also halt consideration of the Stop Online Piracy Act (SOPA). Collectively, millions of people rose up and told Washington that these bills shall not pass.

This outcome was driven by an unprecedented day of online protests on Wednesday of this week, and the resulting coverage on cable and broadcast news networks had an effect.

"Senator Reid made the right decision in postponing next week's vote on PIPA," said Center for Democracy and Technology president Leslie Harris. "It's time for a hard reset on this issue. We need a thoughtful and substantive process that includes all Internet stakeholders. We need to take a hard look at the facts and find solutions that honor the Internet's openness and its unique capacity for innovation and free expression. We are thankful for the efforts of Senator Ron Wyden who from the beginning stood against this bill; his early opposition and leadership gave voice to the important concerns of the Internet community."

Wikipedia, Google, BoingBoing, Reddit, O'Reilly Media and thousands of other websites, blogs and individual citizens asked their communities to take a stand and contact Washington. January 18, 2012, will go down as an historic day of online action. Consider the following statistics:

162 million Wikipedia page views, with some 8 million visitors using an online form to look up the address of their Congressional representatives.

Nearly 1,000 protesters outside New York's U.S. Senators' office in New York City.

The key metric to consider for impact of this action, however, was not measured in digital terms but by civic outcomes: 40 new opponents in Congress.

On Wednesday morning, according to ProPublica's SOPA Tracker, U.S. Senators and Representatives were 80-31 for SOPA and PIPA. By the end of the day, SOPA and PIPA had 68 supporters and 71 opponents in Congress. And by week's end, ProPublica's data showed 187 opponents and "leaning no."

"The amazing thing is that the power of these networks delivered," wrote Votizen co-founder David Binetti on TechCrunch. "By the end of the day, 25 Senators — including at least 5 former co-sponsors of the bill — had announced their opposition to SOPA. Think about that for just a second: A well-organized, well-funded, well-connected, well-experienced lobbying effort on Capitol Hill was outflanked by an ad-hoc group of rank amateurs, most of whom were operating independent of one another and on their spare time. Regardless where you stand on the issue — and effective copyright protection is an important issue — this is very good news for the future of civic engagement."

"Get ready to have this fight again"

Carl Franzen, in his must-read analysis of how the Web killed SOPA and PIPA, lays out a convincing case for why we should think of these bills as effectively "dead."

These bills are not completely in the grave, no matter what headlines you read today, although I can now say with confidence that they will not pass as currently drafted. In the months to come, keep an eye out for efforts to redraft them, cutting DNS filtering provisions or search engine blocks in an effort to make them acceptable to technology companies like Google.

It will be some months yet before Congress is "done" in this election year. No one I've consulted at the Center for Democracy and Technology or Public Knowledge thinks this is over. I'm certainly not convinced yet. The White House said that it would like to see action on anti-piracy legislation this year. Senator Reid had indicated that he would like to revisit legislation in February. It will be months until Congress really shuts down during the election year.

Clay Shirky made an important point today in his post on Hollywood and copyright today: "The risk now is not that SOPA will pass. The risk is that we'll think we've won. We haven't; they'll be back. Get ready to have this fight again."

Video of Shirky's TED Talk on why SOPA is a bad idea is embedded below:

While the power of the Internet to drive media coverage and collective action mattered in Washington this week, it's also critically important to recognize that but for the efforts of Senator Ron Wyden (D-OR), Rep. Darrell Issa (R-CA), Rep. Jason Chaffetz (R-UT), Rep. Jared Polis (R-CO) and Rep. Zoe Logren (D-CA), I believe SOPA and PIPA would likely have passed.

Senator Wyden put a critical hold on the PROTECT IP Act after it sailed out of the Senate Judiciary Committee. The four representatives proposed dozens of amendments to SOPA in a marathon, days-long markup session that effectively filibustered the bill, delaying it until the House came back into session in January. That delay enabled hundreds of organizations and individuals, including newspaper editors, human rights advocates, academics, engineers and public interest groups, to rally to save the Internet as we know it.

"Supporters of the Internet deserve credit for pressing advocates of SOPA and PIPA to back away from an effort to ram through controversial legislation," Issa said in an emailed statement.

The statement continued:

"Over the last two months, the intense popular effort to stop SOPA and PIPA has defeated an effort that once looked unstoppable but lacked a fundamental understanding of how Internet technologies work.

"Postponing the Senate vote on PIPA removes the imminent threat to the Internet, but it's not over yet. Copyright infringement remains a serious problem and any solution must be targeted, effective, and consistent with how the Internet works. After inviting all stakeholders to help improve American intellectual property protections, I have introduced the bipartisan OPEN Act with Senator Rob Wyden which can be read and commented on at KeepTheWebOPEN.com. It is clear that Congress needs to have more discussion and education about the workings of the Internet before it moves forward on sweeping legislation to address intellectual property theft on the Internet. I look forward to working with my colleagues and stakeholders to achieve a needed consensus about the way forward."

Unexplored territory

In the meantime, everyone who participated in this week's unprecedented day of online action should know that the action mattered. If you'd asked me about the prospects for the passage of these bills back in December — and many people did, after I wrote a feature in November that highlighted the threat these anti-piracy bills presented to the Internet, security and freedom of expression online — I estimated that it was quite likely. So did Chris Dodd, the head of the Motion Picture Association of America, who told the New York Times that these passage of these bills was "considered by many to be a 'slam dunk'.'"

We're now in unexplored territory. I've been writing about how the Internet affects government and government affects the Internet for years now. This week was clearly a tipping point in that space. The voices of the people, expressed in calls, letters, tweets, petitions and protests, were heard in Washington.

We saw unprecedented mobilization across the Internet, enabled by an increasingly networked society, social media and a number of tech companies and website owners taking principled stands in support of freedom of expression and the Open Web.

I support the right of Internet companies and services to use their platforms to educate their users about proposed legislation that would harm a free and open Internet, as we understand that term today. It's important now that those same companies and citizens work together to craft an alternative to SOPA, as Rob Preston, the editor-in-chief of Information Week, argued today. The problem of money, politics and SOPA is a thorny one, as John Battelle wrote this morning:

"We can't afford to not engage with Washington anymore ... Silicon Valley is waking up to the fact that we have to be part of the process in Washington — for too long we've treated 'Government' as damage, and we've routed around it."

Just so. We need the smartest minds of our generation thinking about how to help make society work better, creating tools to help others do so and using them to help millions of citizens still struggling to make their way out of the Great Recession. According to the Bureau of Labor and Statistics, there are more than 3 million unfilled jobs. Let's figure out how to fill them.

We need our elected leaders not to focus on big government or small government but a smarter government, more innovative government that uses the power of technology to empower civil society and the collective intelligence of its citizens to adapt to our rapidly changed world. This is precisely what the open government movement that we've been writing about at O'Reilly over the past five years is focused upon.

One of the most unheralded successes of this week's SOPA and PIPA victories was the role that pioneering open government and government transparency efforts had in enabling the protests to take off. Just a few weeks ago, few online had heard of either bill, almost no one could understand their potential impact, and even fewer had read the actual bills.

But thanks to efforts like OpenCongress, which routinely creates valuable resources like this look at the money behind SOPA through its support from the Sunlight Foundation and the Participatory Politics Foundation, the web was able to see who was helping pay for the law. Giving that information a place to live on the web was a fundamental step that enabled powerful demonstrations like the GoDaddy protests in which thousands of users moved their business from the company in protest of its support of SOPA. (I have some misgivings about the tactics and effectiveness of that particular protest, but overall as a first example of the organization and focus of those who would object to SOPA, it was inarguably powerful.)

There are incredibly difficult challenges that face us as a country and as a global community, from jobs to healthcare to the environment to civil liberties to smoldering wars around the world. If more leaders in Silicon Valley and the rest of the country heed Battelle's call, we'll have a chance at solving some of the problems ahead.

What happened this week, however, will reinvigorate the notion that participating in the civic process matters.

A portion of the Internet said "no" to SOPA (the Stop Online Piracy Act) and PIPA (the Protect IP Act) this week with a powerful campaign that involved many websites, including O'Reilly, "going dark" to protest the pending legislation.

The protests didn't just involve the temporary shut-down of websites, however. People were voicing their opinions as well. According to Twitter, there were around 3.9 million tweets about SOPA on January 18, the day of the protest.

Fred Benenson has visualized a portion of those SOPA tweets on GigaPan. With the tool, you can view top SOPA-related tweets and their associated Twitter users.

Check out the massive 32,000-pixel x 32,000-pixel version of the visualization here (be sure to view it in full-screen mode). Benenson has also put together a post that outlines the tools and process behind his work.

Found a great visualization? Tell us about it

This post is part of an ongoing series exploring visualizations. We're always looking for leads, so please drop a line if there's a visualization you think we should know about.

Strata 2012 — The 2012 Strata Conference, being held Feb. 28-March 1 in Santa Clara, Calif., will offer three full days of hands-on data training and information-rich sessions. Strata brings together the people, tools, and technologies you need to make data work.

While the final results are still being tabulated, EFF alone helped users send over 1,000,000 emails to Congress, and countless more came from other organizations. Web traffic briefly brought down the Senate website. 162 million people visited Wikipedia and eight million looked up their representatives’ phone numbers. Google received over 7 million signatures on their petition.

That Murdoch doesn’t get the Internet shouldn’t surprise anyone who’s observed his recent efforts to control it. It’s a campaign that goes well beyond Murdoch’s MySpace miscalculation to include tens of millions of dollars spent on Washington lobbyists who are intent on passing laws that undermine the Internet’s open architecture. And now millions of people are joining to protest Murdoch and his ilk and protect our fundamental freedom to connect, link to and share information without censors or filters.

Over a century ago Thomas Edison got the patent for a device which would “do for the eye what the phonograph does for the ear”. He called it the Kinetoscope. He was not only amongst the first to record video, he was also the first person to own the copyright to a motion picture. Because of Edisons patents for the motion pictures it was close to financially impossible to create motion pictures in the North american east coast. The movie studios therefor relocated to California, and founded what we today call Hollywood. The reason was mostly because there was no patent. There was also no copyright to speak of, so the studios could copy old stories and make movies out of them – like Fantasia, one of Disneys biggest hits ever.